West Virginia Supreme Court | September 2002 Term Opinion Summaries

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last updated: 5/20/03; 8:51:43 AM

September 2002 Term Opinion Summaries

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ABUSE & NEGLECT

Repeated use of controlled substances in children's presence constitutes abuse

IN RE: AARON THOMAS M., et al., No. 30600 (Per Curiam)(Starcher, J., dissenting)(Albright, J., disqualified)(Eagloski, Judge, by temporary assignment)(November 27, 2002). Affirming an order of the Circuit Court of Wood County terminating parental rights. Rejecting, inter alia, argument that the circuit court erred in concluding that her alleged use of controlled substances in her children's presence constituted abuse.

Accepting voluntary relinquishment without adjudicating abuse and neglect

IN RE: KRISTOPHER E. and KENNETH C.E., No. 30444 (Per Curiam)(November 4, 2002). Reversing adjudication of abuse and neglect by the Circuit Court of Preston County, noting that circuit court may accept appellant's voluntary relinquishment of parental rights without reaching the abuse and neglect question.

Termination affirmed

IN RE: TONJIA M., No. 30404 (Per Curiam)(November 4, 2002). Affirming termination of parental rights entered by the Circuit Court of Lewis County.

CONTRACTS

Effect of economic duress on enforceability of settlement agreement

BERARDI, et al. v. MEADOWBROOK MALL COMPANY, et al., No. 30517 (Per Curiam)(McGraw, J., dissents)(November 1, 2002). Affirming grant of summary judgment in favor of Meadowbrook entered by the Circuit Court of Harrison County. Rejecting appellant's contention that a settlement agreement reached between two arms-length business interests was unenforceable because it was agreed to under economic duress.

Accord and satisfaction not met by cashing insurance check

RICHARDS v. KEES, et al., No. 30467 (Per Curiam)(November 1, 2002). Reversing a grant of summary judgment entered in the Circuit Court of Fayette County in favor of the defense in a vehicle accident case. Holding that ransmittal of $200 check to insured and cashing of that check, which contained words indicating that it was a final settlement of any bodily injury claims, did not constitute accord and satisfaction, in light of the absence of any submitted medical bills, the absence of any discussion regarding settlement of a bodily injury claim, and the insured's limited education and understanding.

CONTRACTS, EDUCATION

Applicability of increased academic requirements at private college

BENDER v. ALDERSON-BROADDUS COLLEGE, No. 30458 (Albright, J.)(McGraw, J., dissenting)(November 1, 2002). Affirming a grant of summary judgment entered by the Circuit Court of Barbour County in favor of private college. Holding that the school's change to the completion requirements for its multi-year degree program was not arbitrary and capricious, in light of evidence showing that the grading scale modification reflected a measure of concern for the enhancement of the student's educational experience as well as advancement of the institution's reputation and goals.

CONSTITUTIONAL

Due process prior to termination of family assistance benefits, construction of overseers of the poor clause

SER K.M., et al. v. WV DEPT. OF HEALTH AND HUMAN RESOURCES, et al., No. 30494 (McGraw, J.)(Starcher, J., concurring)(Maynard, J., concurring in part and dissenting in part)(December 9, 2002). Granting a moulded writ of mandamus in an action brought by recipients of federal TANF benefits who challenged the constitutional validity of the 60 month cut-off rule, and alleged several defects in the respondent's operation of the TANF program. Construing the express inclusion of the office of the overseers of the poor in Article IX, section 2 of the West Virginia Constitution: "...the framers gave voice to the principle that government has a moral and legal responsibility to provide for the poor. The allocation of this responsibility rests with the Legislature, provided that the support granted is not constitutionally insufficient." Syl. pt. 4, in part. Holding that: "In the presence of other significant assistance or support, the current practice of terminating cash assistance for most recipients after five years, as provided for in West Virginia Code ß 9-9-10 (2001), does not violate our State Constitution." Syl. pt. 5. Directing specific modifications to the Fair Hearing process in order to comport with the due process rights of the petitioners.

CRIMINAL LAW & PROCEDURE

Essential element of transfer of stolen property is proof that property was stolen by someone other that the defendant

STATE v. ANDERSON, No. 30524 (Per Curiam)(Maynard, J., concurring in part and dissenting in part)(Albright, J., concurring)(December 9, 2002). Reversing a conviction for transfer of stolen property arising from the Circuit Court of Monongalia County. Holding that the lower court failed to instruct the jury on an essential element of the offense, namely, that that the property must have been stolen by someone other than the accused. Rejecting an argument asserted by the State that this element of the offense could be eliminated, and that the Court should overrule syllabus point 1 of STATE v. TAYLOR, 176 WV 671, 346 SE2d 822 (1986).

Exclusion of pretrial detainees from involuntary hospitalization process is unconstitutional

SER RILEY v. RUDLOFF, No. 30725 (Davis, C.J.)(Starcher, J., concurring)(December 6, 2002). Granting a moulded writ of mandamus, prohibiting the commissioner of the WV Dept. of Health and Human Services from rejecting, based solely upon an applicant's incarceration, applications for involuntary hositalization submitted on behalf of pretrial detainees. Holding that WV Code 27-5-2(a), which excludes "incarcerated persons" from participating in the application process for involuntary hospitalization, is an unconstitutional violation of the due process rights of the detainees to receive medical care.

Habeas relief granted, new trial awarded due to ineffective assistance of trial counsel and improper appointment of trial judge

SER MYERS v. PAINTER, No. 30514 (Per Curiam)(December 6, 2002). Reversing an order of the Circuit Court of Berkeley County that refused to grant a writ of habeas corpus. Holding that trial counsel's was ineffective by, inter alia, failing to obtain available copies of the victim's psychological profiles and failing to assure the presence of the defendant at certain critical stages of the proceedings. After some discussion of the current rules governing disqualification of judges, holding that where a motion to disqualify is filed, transfer of the case within a single multi-judge circuit by a disqualified judge was improper. Writ granted, remanded for new trial.

State punishment for absence from military service unconstitutional

SER GAMES-NEELY v. SANDERS, No. 30691 (Albright, J.)(December 4, 2002). Denying a writ of prohibition sought by the State to prohibit the circuit court's dismissal of a misdemeanor criminal complaint regarding absence from military service without leave. Holding that the provisions of WV Code 15-1E-87(b) are unconstitutional because they violate the militia clauses of Article 1, Section 8 of the US Constitution by furnishing a punishment beyond that prescribed by Congress.

Failure to advise defendant of intent to seek recidivist enhancement

SER APPLEBY v. RECHT, No. 30737 (Per Curiam)(Starcher, J. and Albright, J. dissenting)(Maynard, J., concurs)(December 4, 2002). Denying a writ of prohibition sought to prevent the State from proceeding to try petitioner as a recidivist upon his conviction for DUI third offense, based upon one predicate felony of unlawful assault and two prior felony convictions for DUI, third offense. Rejecting argument that prosecuting attorney's failure to advise defendant, at the point he pled guilty, that the State would seek a recidivist enhancement was improper; that WV's recidivist procedure is invalid and void for vagueness; and that application of recidivist statute here would constitute disproportionate sentencing.

Dismissal of habeas claims prior to appointment of counsel

MUGNANO v. PAINTER, No. 30618 (Per Curiam)(Starcher, J., and Albright, J., dissenting)(November 18, 2002). Affirming an order of the Circuit Court of Greenbrier County that denied habeas corpus relief following the appellant's plea of guilty to murder and malicious wounding and sentence of life without mercy. Holding that the circuit court was not clearly wrong in concluding that habeas relief was not warranted, even in the absence of a hearing and appointment of counsel.

Juror's failure to disclose agreement with prosecutor warrants new trial

STATE v. VARNER, No. 30518 (Per Curiam)(Albright, J., disqualified)(Janes, Judge, by temporary assignment)(November 8, 2002). Reversing a conviction for first degree murder obtained in the Circuit Court of Wood County, and remanding for a new trial. Holding that the defendant was denied a fair trial by an impartial jury because the foreperson of the jury had a diversionary agreement in place with the prosecuting attorney's office at the time of trial, and failed to disclose the existence of that agreement during voir dire.

Disqualification of defense counsel

SER YOUNGBLOOD v. SANDERS, No. 30785 (Albright, J.)(Davis, C.J., concurring)(November 27, 2002). Granting a writ of prohibition to prevent enforcement of an order of the Circuit Court of Morgan County that disqualified an attorney from serving as defense counsel for the accused because of counsel's alleged access to confidential information transmitted by the wife of a co-defendant in a conversation between the wife and a paralegal employed by the defense attorney. Holding that the factual information at issue is separately contained in other statements provided to the police, and therefore no basis exists for disqualification of the defense attorney. Setting forth guidelines for evaluating disqualification motions in the criminal context, especially with regard to the receipt of confidential information from a prospective client.

Probable cause on criminal complaint form

SER CLIFFORD v. STUCKY, No. 30739 (Albright, J.)(November 27, 2002). Granting relief in prohibition to prevent enforcement of an order dismissing a magistrate court appeal from a misdemeanor battery conviction on the ground that the failure of a magistrate to check a box on the criminal complaint form constituted fatal error. Holding that the documents initiating a criminal prosecution in magistrate court, when taken as a whole, must clearly indicate that a probable cause determination has been made by a magistrate before a warrant for arrest or a summons to appear are issued. When the form is examined in tandem with the summons issued, there is a clear indication that probable cause was found by the magistrate before the summons issued.

Implied consent and inevitable discovery exceptions recognized and outlined

STATE v. FLIPPO, No. 30527 (Davis, C.J.)(November 27, 2002). Affirming an order of the Circuit Court of Fayette County, in proceedings on remand from the United States Supreme Court regarding the admissibility of certain photographs at trial. Recognizing the implied consent exception to the warrant requirement and specifically outlining its parameters. Further recognizing an inevitable discovery exception to the exclusionary rule, which, under Article III, Section 6 of the West Virginia Constitution, requires the State to prove by a preponderance of the evidence that (1) there was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police were actively pursuing a lawful alternative line of investigation to seize the evidence prior to the misconduct. Under the facts of the case, neither exception applied; the evidence of guilt presented by the State was overwhelming, and there was no prejudicial impact from the admission of the photographs. Consequently concluding that the error was harmless beyond a reasonable doubt.

Convictions of larceny by embezzlement and larceny by fraudulent scheme violate double jeopardy

STATE v. SUSAN BROWN, No. 30403 (Per Curiam)(November 4, 2002). Reversing conviction and sentence imposed in the Circuit Court of Monongalia County. Applying plain error doctrine and holding that in the absence of evidence that she obtained services by fraudulent scheme, appellant's convictions for larceny by embezzlement and larceny by fraudulent scheme violate double jeopardy principles. Remanded for entry of new conviction and sentencing orders.

Sentence not disproportionate

STATE v. DONNA MANLEY, No. 30408 (Per Curiam)(Starcher, J., concurring)(November 4, 2002). Affirming conviction and sentence imposed in the Circuit Court of Fayette County. Appellant received a total of six to sixty years in the penitentiary after she pled guilty to six counts of forgery, six counts of uttering, one count of conspiracy to commit a felony, and one count of burglary. Rejecting appellant's contention that the sentence she received was disproportionate to that received by her co-defendants.

Dismissal of indictment for failure to comply with 180 day IAD requirement

STATE v. SEENES, No. 30409 (Per Curiam)(October 11, 2002). Reversing an order of the Circuit Court of Doddridge County that denied defendant's motion to dismiss charges against him under the Interstate Agreement on Detainers Act. Holding that the 180-day provision of Article III of the IAD was triggered, that the prosecuting attorney was obliged to inform the lower court of the IAD time frame, and failure to bring the defendant on for trial during that time frame requires dismissal of the indictment.

Impossibility in performing plea agreement

SER GESSLER v. MAZZONE, et al., No. 30626 (Per Curiam)(October 11, 2002). Denying a writ of prohibition that sought to prohibit enforcement of an order reinstating six counts of an indictment. Petitioner had pled guilty to two counts of being a felon in possession of a firearm in violation of WV Code 61-7-7(b)(2), in exchange for dismissal of the remaining six felony counts, with prejudice. Subsequently, the lower court discovered that the two counts to which petitioner pled guilty were in fact misdemeanors at the time the plea was entered, rather than felonies, as believed by both the petitioner and the State. Holding that the lower court properly set aside the plea agreement as impossible to fulfill.

Court fines and costs not dismissed for indigency

SER HOLCOMB v. NIBERT, No. 30519 (Per Curiam)(Albright, J., dissenting)(October 18, 2002). Denying a writ of mandamus sought to compel the Circuit Court of Mason County to dismiss certain fines and court costs. Rejecting petitioner's contention that the fees and costs should be waived because he is indigent, holding that WV Code 59-1-36 does not apply to the fines and costs assessed for criminal charges by magistrate courts.

ELECTIONS

Reinstating commission's contest ruling

SER BOWLING v. GREENBRIER COUNTY COMMISSION, et al., Nos. 30876, 30877 (Per Curiam)(December 2, 2002). Reversing a decision of the Circuit Court of Greenbrier County in an election contest matter arising from the Democratic nomination for a county commission position. Reinstating the election contest decision made by the Greenbrier County Commission. Holding, inter alia, that in light of the statutory ambiguity created by 2002 amendments to WV Code 3-4A-19a, the Commission did not err in counting ballots that lacked poll clerk signatures.

Residency requirements for county commission race satisfied

SER SANDY v. JOHNSON, et al., No. 30784 (Per Curiam)(November 8, 2002). Granting a moulded writ of mandamus in an election contest action arising out of the democratic nomination for county commissioner in Webster County. Holding that the requiremnets of residency in the appropriate magisterial district were met by Mr. Sandy at the time of his nomination, and that sufficient evidence existed to conclude that Mr. Sandy changed residence and intends to remain at that residence.

EMPLOYMENT

Further evidence needed to determine whether county commission is exempt from state wage and hour law

HANEY v. COUNTY COMMISSION OF PRESTON COUNTY, et al., No. 30532 (Per Curiam)(Davis, C.J., disqualified)(December 11, 2002). Reversing a grant of summary judgment entered in the Circuit Court of Preston County in favor of the defendants, the county commission and the sheriff, in an action to obtain overtime compensation allegedly due under the state wage and hour law. [WV Code 21-5C-1, et seq.] Reversing the circuit court's determination that, because eighty percent of its employees were subject to the federal Fair Labor Standards Act, the appellees were exempt from state wage and hour law. Remanding for more specific consideration of whether, out of *all* the County Commission's employees, at least eighty percent are subject to a federal act relating to minimum wage, maximum hours and overtime compensation.

Defense summary judgment reversed in wrongful discharge action

TIERNAN v. CAMC, No. 30362 (Per Curiam)(Davis, C.J. and Maynard, J. concurring in part and dissenting in part)(Starcher, J. concurring)(December 4, 2002). Reversing a grant of summary judgment entered by the Circuit Court of Kanawha County against a nurse who was fired and who claimed that her firing was in retaliation for her criticism of nurse staffing and employment policies. Finding that plaintiff did present evidence that she had raised patient safety concerns with the hospital, and that the plaintiff also presented evidence indicating that she relied upon the hospital's promise of no retaliation. Given these material issues of fact, summary judgment was improperly granted.

Portions of attorney claims against former firm may proceed

BASIL LEGG v. JOHNSON, SUMMERMAN & BROUGHTON, L.C., No. 30591 (Per Curiam)(Davis, C.J. disqualified)(December 4, 2002). Granting mixed relief in an action by an attorney against his law firm arising from the Circuit Court of Harrison County. Holding that the circuit court correctly granted summary judgment in favor of the firm on appellant's claim under the WV Wage Payment and Collection Act, because appellant was not an employee as defined in that Act. Holding further that the circuit court properly granted summary judgment to the firm on appellant's fraud claim. However, as to appellant's breach of contract claim, the circuit court erred in granting summary judgment in favor of the firm.

Insubordination, correctability of conduct

MAXEY v. MCDOWELL BOARD OF EDUCATION, No. 30440 (Albright, J.)(Maynard, J. disqualified)(December 4, 2002). Reversing an order of the Circuit Court of McDowell County that affirmed a grievance board decision upholding the termination of appellant's employment for insubordination. Remanding for further proceedings, including a determination by the grievance board as to whether the conduct in question was correctable, in accordance with WV Board of Education Policy 5300.

Portions of attorney claims against former law firm may proceed

LEGG v. JOHNSON, SIMMERMAN & BROUGHTON, No. 30591 (Per Curiam)(December 4, 2002). Granting mixed relief in an action by an attorney against his former law firm arising from the Circuit Court of Harrison County. Holding that the circuit court correctly granted summary judgment in favor of the firm on appellant's claim under the WV Wage Payment and Collection Act, because appellant was not an employee as defined therein. Holding further that the circuit court properly granted summary judgment on appellant's fraud claim. However, as to appellant's breach of contract claim, holding that the circuit court erred in granting summary judgment in favor of the law firm.

Summary judgment reversed in wrongful discharge action

TIERNAN v. CAMC, No. 30362 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(Maynard, J., concurring in part and dissetning in part)(December 4, 2002). Reversing a grant of summary judgment entered in the Circuit Court of Kanawha County against a nurse who was fired and who claimed that her firing was in retaliation for her criticism of nurse staffing and employment policies. Finding that the appellant did present evidence that she had raised patient safty concerns with the hospital, and that the appellant also presented evidence indicating that she relied upon the hospital's promise of no retaliation. Given the material issues of fact, summary judgment was improperly granted.

Denial of tenure upheld

KARLE v. BOARD OF TRUSTEES/MARSHALL UNIVERSITY, No. 30410 (Per Curiam)(December 2, 2002). Affirming an order of the Circuit Court of Cabell County that upheld a grievance board decision affirming the university's decision to deny tenure. Rejecting arguments that appellant was denied procedural due process prior to tenure review, that she was denied due process during tenure review, and that the administrative law judge was clearly wrong to conclude that she was not entitled to tenure.

Suspension proper, non-pretextual reason established

GRAHAM v. PUTNAM COUNTY BD. OF EDUCATION, No. 30361 (Per Curiam)(November 8, 2002). Affirming a final decision of the Circuit Court of Kanawha County that found the board had properly suspended the appellant, with pay, following a finding of insubordination, willful neglect of duty, and breach of confidentiality. Further finding that although appellant had presented a prima facie case of reprisal, the board had provided a legitimate non-pretextual reason for its actions.

Acquisition of seniority and experience as a guidance counselor

BOARD OF EDUCATION OF MARSHALL COUNTY v. GAUDINO, et al., No. 30363 (Per Curiam)(Starcher, J., dissenting)(November 27, 2002). Reversing a decision of the Circuit Court of Kanawha County regarding the position of guidance counselor at John Marshall High School. Holding that the board and the circuit court erred in applying the statutory criteria presently set forth in WV Code 18A-4-7a in filling the guidance counselor position, and that acquisition of experience and seniority as an elementary guidance counselor did not constitute experience and seniority in the area a high school guidance counseling. Noting that the statutory provisions in this area lack clarity and would hopefully be revisited by the legislature.

Prima facie case of age discrimination not established

WADDELL v. JOHN Q. HAMMONDS HOTEL, INC., et al., No. 30365 (Per Curiam)(McGraw, J. dissents)(November 4, 2002). Affirming grant of summary judgment in favor of defendants by the Circuit Court of Kanawha County in an age discrimination action. Holding that the circuit court was correct in determining that the appellant had failed to establish a prima facie case of age discrimination.

ENVIRONMENTAL

Failure to appeal issuance of permit for test well precludes mandamus relief

SER LOVEJOY, et al. v. CALLAGHAN, et al., No. 30670 (Per Curiam)(McGraw, J., dissenting)(Albright, J., concurring)(November 1, 2002). Denying a writ of mandamus sought to revoke the permit issued for a deep test well. In light of petitioners' failure to utilize available statutory routes for appeal, petitioners waived their right to challenge the issuance of the working well permit. Specifically declining to reach the question of whether 39 WVCSR 1-4.4(a), which exempts test wells from the consent and easement provisions, is invalid for lack of legislative approval.

EVIDENCE

Offers of settlement admissible in discrimination trial; prohibition does not lie against discretionary rulings

SER SHELTON v. BURNSIDE, et al., No. 30671 (Maynard, J.)(McGraw, J., dissenting)(November 4, 2002). Denying a writ of prohibition sought to prevent enforcement of a pretrial evidentiary ruling by the Circuit Court of Raleigh County. Holding that the decision of whether to admit compromise offers for a purpose other than to prove liability for or invalidity of the claim or its amount under WV Rule of Evidence 408 is within the sound discretion of the trial court. As such, it is a discretionary ruling not appropriate for prohibition: "[W]e believe that the piecemeal challenge to discretionary rulings through writs of prohibition should be discouraged."

FAMILY LAW & PROCEDURE

Child support award reversed for failure to conduct HUFFMAN hearing

SER WVDHHR CHILD ADV. OFFICE v. LAMBERT, No. 30104 (Per Curiam)(December 6, 2002). Reversing an order of the Circuit Court of Kanawha County that adopted a FLM recommendation regarding child support reimbursement, for failure to conduct a hearing on the correct amount owed and his ability to pay, as required by SER DHHR by ADKINS v. HUFFMAN, 174 WV 401, 332 SE2d 866 (1985).

Custody by grandparents reversed

IN RE: JADE E.G., et al., No. 30619 (Per Curiam)(December 6, 2002). Reversing an order of the Circuit Court of Mason County that adopted a FLM recommendation to award custody of minor children to paternal grandparents, custody awarded to the mother. Because there was no determination of unfitness, and returning the children to her custody would not constitute a significant detriment to the children, custody awarded to the mother, with meaningful visitation by the paternal grandparents.

Final divorce order affirmed

GOOCH v. GOOCH, No. 30528 (Per Curiam)(December 4, 2002). Affirming a final divorce order entered in the Circuit Court of Marion County. Rejecting challenges to distribution of marital assets, award of rehabilitative alimony, and the parenting plan.

Effect of intervening unmarried cohabitation

PORTER v. PORTER, Nos. 29333 and 30529 (Per Curiam)(December 4, 2002). Reversing orders related to alimony and distribution of assets entered in the Circuit Court of Marion County. Holding that the appellant should have been granted permanent alimony as recommended by the family law master. Further holding that the circuit court erred in distributing property acquired during the first, second and intervening cohabitation; only marital property acquired during the second marriage should be distributed, because evidence does not support the conclusion that the parties held themselves out as married during their intervening unmarried cohabitation.

Improper denial of alimony

DRENNEN v. DRENNEN, No. 30628 (Per Curiam)(Davis, C.J. and Maynard, J. concurring in part and dissenting in part)(December 4, 2002). Granting mixed relief in a divorce action arising from the Circuit Court of Kanawha County. Holding that the lower court abused its discretion by finding substantial inequitable conduct by the appellant and in utilizing that judgment in the denial of alimony. Affirming award of marital name to appellee and directing the lower court to reassess, on remand, the issue of the appellant's entitlement to a greater award of attorney fees.

Errors in attribution of income, failure to award permanent alimony and pay attorney fees

JOSIMOVICH v. JOSIMOVICH, No. 30465 (Per Curiam)(Maynard, J. disqualified)(December 4, 2002). Reversing a final divorce order entered in the Circuit Court of Randolph County. Holding that lower court erred in attributing the income of a registered nurse to the appellant; erred in failing to award the appellant permanent alimony; and erred in failing to require the appellee to pay all of appellant's attorney fees.

Interpretation of property settlement, proceeds from lawsuit

HARRIS v. HARRIS, No. 30594 (Per Curiam)(December 4, 2002). Granting mixed relief from an order entered in the Circuit Court of Marshall County finding appellant in contempt for failing to pay his ex-wife $50,000 pursuant to a property settlement agreement signed by the parties in the underlying divorce action. Finding the agreement to have been ambiguous with regard to disposition of proceeds of a lawsuit, and the circuit court to have been erroneous in holding the appellant in contempt, but holding that appellant was required to pay certain medical expenses as set forth in the property settlement agreement.

Final divorce order affirmed

GOOCH v. GOOCH, No. 30528 (Per Curiam)(December 4, 2002). Affirming a final order of the Circuit Court of Marion County. Rejecting challenges to distribution of marital assets, award of rehabilitative alimony, and the parenting plan.

Overtime compensation in support modification

IN RE MARRIAGE OF: KIRWAN v. KIRWAN, No. 30513 (Albright, J.)(November 8, 2002). Affirming a final order of the Circuit Court of Cabell County regarding child support modification. Holding that overtime compensation included in child support gross income calculations under WV Code 48-1-228(b)(6) is fifty percent of such compensation earned during the thirty-six months preceding the calculation. The beginning of the thirty-six month period in child support modification proceedings is the date the petition for modification is filed.

Post-termination child support - REHEARING GRANTED

IN RE: REBECCA LYNN C. v. MICHAEL JOSEPH B., No. 30411 (Davis, C.J.)(Starcher, J., and Albright, J., dissenting)(November 27, 2002). Affirming a decision of the Circuit Court of Ohio County regarding post-termination child support. Holding that a final order terminating parental rights deprives a court of authority to impose a post-termination award of child support upon the parent whose rights have been terminated. However, the court retains jurisdiction to enforce payment of child support that accrued before the parental rights were terminated.

On January 16, 2003, the Court granted a petition for rehearing in this matter by a vote of 3-2 (Justices Davis and Maynard would refuse). The case is set for re-argument on March 11, 2003.

Life insurance policy as part of child support obligation

IN RE MARRIAGE OF: ROBINSON v. COPPALA, No. 30464 (Davis, C.J.)(November 27, 2002). Reversing a decision of the Circuit Court of Kanawha County with regard to alimony and a required life insurance policy. Holding that the family law master was correct, in light of the unusual circumstances of the case, in recommending that the father be required to maintain a life insurance policy on the parties' daughter. Remanding for determination of the premium amounts, to be deducted from the child support obligation.

Rule 60(b) no substitute for appeal

JIVIDEN v. JIVIDEN, No. 30400 (Per Curiam)(Starcher, J., and Albright, J., dissenting)(October 11, 2002.) Affirming a final order of the Circuit Court of Kanawha County that denied a 60(b) motion to correct a final order that awarded the couple's home to the appellant's former husband. Holding that the appellant demonstrated no basis under Rule 60(b) for disturbing the final divorce judgment.

Exercising jurisdiction in multistate divorce action

ELLITHORP v. ELLITHORP, No. 30443 (Per Curiam)(Davis, C.J., dissenting)(October 11, 2002). Granting mixed relief from a final order of the Circuit Court of Putnam County in a case involving simultaneous divorce proceedings in Texas and West Virginia. Affirming the lower court's exercise of jurisdiction, but holding that the lower court was without authority to enter an agreed order retroactively implementing child and spousal support. Remanding for entry of an appropriate final order.

INJUNCTION

Clarification of application process for temporary restraining orders, evidentiary burdens at preliminary injunction stage, disposition of legal claims must precede resolution of permanent injunction issue

CAMDEN-CLARK MEMORIAL HOSPITAL v. TURNER, No. 30459 (McGraw, J.)(December 6, 2002). Reversing orders of the Circuit Court of Wood County that issued preliminary then permanent injunctions to enjoin a former hospital clerk from entering the premises of the hospital where she had worked. The hospital presented evidence that the appellant made threats of violence against her supervisors and co-workers. Appellant contended that she did not threaten anyone, and that she was terminated for her support of a union organizing effort at the hospital. Holding that the lower court erred in placing a burden on the appellant to disprove the allegations made against her. Clarifying the procedure for seeking ex parte injunctive relief by means of an application for a temporary restraining order under Rule 65 of the Rules of Civil Procedure. Holding that agreement to extend a temporary restraining order does not operate as a waiver of a right to contest the temporary restraining order, or any subsequent injunction. Holding further that the lower court was incorrect to place a burden on the appellant to disprove the allegations against her at the prelimary injunction hearing, because that burden remained on the hospital. Finally holding that the appellant's wrongful discharge and abuse of process counterclaims, upon which she requested a jury trial, should not have been ignored by the lower court. If a civil action contains both a request for injunctive relief and a legal claim that would ordinarily be tried before a jury, a court must allow a jury to hear the legal claim before ruling on the question of permanent injunctive relief. Remanded for new prelinary injunction hearing applying the correct burden of proof. If the lower court grants perliminary injunctive relief, it must allow the appellant to present her counterclaims to a jury before resolving the permanent injunction issue.

INSURANCE

Applicability of BROADNAX

FINDLEY, ET AL. v. STATE FARM, No. 30842 (Davis, C.J.)(Starcher, J. concurring)(McGraw, J. concurring in part and dissenting in part)(December 6, 2002). Affirming grant of summary judgment in favor of defendant insurer in Circuit Court of Barbour County in matter construing the applicability of MITCHELL v. BROADNAX, 208 WV 36, 537 S.E.2d 882 (2000). Holding that: (1) provisions of WV Code 33-6-30(b)-(c) do not apply retroactively; (2) appellant cannot assert a claim for relief pursuant to MITCHELL v. BROADNAX; (3) anti-stacking exclusions in the policy at issue are valid and enforceable. Holdings of BROADNAX apply only to exclusions incorporated into motor vehicle insurance policies on or after February 18, 2000, the effective date of our decision, and before the effective date of the legislative amendments to WV Code 33-6-30 on June 5, 2002. Further clarifying the requirements for standing in syllabus point 5.

Determining meaning of household is question for jury, factors set forth

FARMERS MUTUAL INS. CO. v. TUCKER, ET AL., No. 30469 (Starcher, J.)(Davis, C.J. dissenting)(Maynard, J. dissenting)(Albright, J. concurring)(December 6, 2002). Reversing an order of the Circuit Court of Putnam County granting summary judgment to an insurance company in a declaratory judgment action to determine coverage under a liability insurance policy. Setting forth factors for determining meaning of "resident of your household" where not defined in the policy. Modifying holding of SPANGLER v. ARMSTRONG, 201 WV 643, 499 S.E.2d 865 (1997), to the extent it suggests that ONLY a person who lives under the same roof can be a member of the insured's household. Finally holding that because a determination of residency depends on the intent of the parties, it is typically a question of fact that cannot be determined through a motion for summary judgment.

Continuation of health insurance coverage for widows of certain city employees

ORLOFSKE v. CITY OF WHEELING, et al., No. 30456 (Davis, C.J.)(November 8, 2002). Affirming a final decision of the Circuit Court of Ohio County that required the City of Wheeling to continue accepting premium payments for health insurance coverage previously afforded to retired employees and their beneficiaries. Rejecting contentions that state and federal law limit the continuation period to thirty-six months.

MUNICIPALITIES, PROCEDURE

Procedural challenge to ordinance dismissed as moot after ordinance amended and reenacted

VELEGOL v. CITY OF WEIRTON, No. 30531 (Per Curiam)(December 4, 2002). Dismissing on appeal from a judgment of the Circuit Court of Brooke County regarding a municipal police and fire service fee. During pendency of the appeal, the city amended and reenacted the ordinance at issue. Holding that the reenacted ordinance cured substantive defects and procedural publication defect. Accordingly, appeal dismissed as moot.

PROBATION, PAROLE & PRISONS

Special master report received, review again in one year

SER SAMS v. KIRBY, et al., Nos. 26647, 26909, 26910, 27308, 27309, 26911 (Per Curiam Order). In a per curiam order relating to the ongoing litigation by inmates sentenced to correctional facilities but being held at regional jails, receiving the report submitted by the special master in cooperation with the parties. Directing the report and all related materials to be transferred to the executive and legislative branches for their consideration. The special master is retained, and the Court will reassess progress in one year. For more information, read the Court's prior opinion.

Pre-summons dismissal of inmate suits

WARD v. CLIVER, No. 30493 (Starcher, J.)(December 2, 2002). Affirming, on separate grounds, the dismissal of inmate litigation by the Circuit Court of Kanawha County. Addressing for the first time the implementation of WV Code 25-1A-4, which authorizes pre-summons dismissal of certain types of civil actions filed by state inmates. Construing the provision narrowly, that while obviously frivolous lawsuits filed by inmates may be dismissed prior to the issuance of process, where there is any reasonable possibility that a lawsuit filed by an inmate, liberally construed, raises a potentially cognizable or colorable claim, the procedures of WV Code 25-1A-4 should not be employed by circuit courts. Where claims are dismissed under this provision, dismissal orders must state the court's reasoning and set forth a specific factual and legal basis for that decision.

Single occupancy cells - REHEARING GRANTED

SER BERRY v. McBRIDE, No. 30696 (Per Curiam)(Starcher, J., concurring)(Maynard, J., dissenting)(November 27, 2002). Granting a moulded writ of mandamus to require correctional officials to house a wheelchair-bound inmate in a single occupancy cell. Upon review of the sparse record, concluding that neither a constitutional nor statutory right to a single cell existed, but that state regulatory law requires no more than one occupant of a cell designed for single occupancy.

The Court granted rehearing in this case on January 16, 2003 by a vote of 3-2 (Chief Justice Starcher and Justice McGraw would refuse). The case is scheduled to be re-argued on April 9, 2003.

Restoration of good time credit

SER WILLIAMS, et al. v. DEPT. of MILITARY AFFAIRS and PUBLIC SAFETY, et al., No. 30407 (Davis, C.J.)(October 11. 2002). Granting a moulded writ of mandamus in a case involving the manner in which the Commissioner of the Division of Corrections revokes and restores good time credit to inmates. Recognizing the commissioner's sole authority to promulgate disciplinary rules for correctional facilities, which authority includes the power to approve requests to restore an inmate's previously forfeited good time credit. Restoration of good time credit should be accomplished on a case-by-case basis according to the commissioner's policies or procedures. Further setting forth guidelines for issuance of notice to inmates of alleged disciplinary violations.

PROFESSIONAL DISCIPLINE

Public reprimand and costs imposed

LAWYER DISCIPLINARY BOARD v. SIMS, No. 28473 (Per Curiam)(Davis, C.J., concurring in part and dissenting in part)(McGraw, J., disqualified)(O'Hanlon, Judge, by temporary assignment)(November 4, 2002). In lawyer disciplinary proceeding against former prosecutor who had been previously removed from office as sanction for inappropriate conduct, imposing public reprimand and payment of costs for respondent's conduct in repeatedly making extrajudicial statements which had a substantial likelihood of materially prejudicing adjudicative proceedings.

Annulment and restitution ordered

LAWYER DISCIPLINARY BOARD v. LUSK, No. 29972 (Per Curiam)(Davis, C.J. and Maynard, J., concurring in part and dissenting in part)(Albright, J., concurring)(November 1, 2002). In lawyer disciplinary matter, annulling license to practice law and ordering restitution after finding multiple violations of the Rules of Professional Conduct.

Temporary suspension imposed

LAWYER DISCIPLINARY BOARD v. NICHOLS, No. 30690 (Per Curiam)(October 11, 2002). In a lawyer disciplinary matter, imposing temporary suspension of law license pending the outcome of the disciplinary proceedings, and continuing appointment of trustee to protect interests of respondent's clients.

PROPERTY

Jury verdict for plaintiffs should not have been set aside

FULLER v. RIFFE, No. 30515 (Per Curiam)(December 2, 2002). Reversing an order of the Circuit Court of Raleigh County that set aside a jury verdict in favor of the plaintiffs in the amount of $60,000, and entered judgment for the defendants as a matter of law. Concluding that there was sufficient evidence presented at trial for the jury to conclude that a conveyance by the appellant's grandfather six days prior to his death was a sale rather than a gift, thereby entitling the estate to the purchase price.

Statutory construction - Pre-demolition review requirements for historical structures

GALLANT v. COUNTY COMMISSION OF JEFFERSON COUNTY, No. 30316 (Per Curiam)(McGraw, J., concurring)(November 27, 2002). Granting mixed relief in a case arising from the Circuit Court of Jefferson County involving the review requirements for historical structures enunciated in WV Code 29-1-8. Construing application of an amendment to the statute that became effective while court proceedings were ongoing. Reversing the lower court's retroactive application of the statutory amendment, but affirming the lower court's conclusion that there was no violation of the prohibition against special legislation.

Challenge to final action of planning commission may proceed by certiorari

LOWER DONNALLY ASSOC. v. CHARLESTON MUNICIPAL PLANNING COMM., et al., No. 30470 (Albright, J.)(November 27, 2002). Reversing a final decision of the Circuit Court of Kanawha County that dismissed a writ of certiorari sought by an unincorporated neighborhood association to review certain actions taken by the Charleston Municipal Planning Commission. Addressing the question despite technical mootness, and holding that the final actions of a planning commission adopting a comprehensive plan or amendments to it, approving or rejecting plats or plans of subdivisions, and adopting a final report with respect to a zoning ordinance, regardless of whether that report is an initial report or a revised and resubmitted report, are subject to review by writ of certiorari regardless of whether the final action of the planning commission is dispositive of the matter or is followed by legislative action of the governing body. To the extent it holds otherwise, GARRISON v. CITY of FAIRMONT, 150 WV 498 (1966) is hereby modified. Judicial review by way of certiorari is limited to whether the record discloses that procedures required by law have been followed.

Standing to challenge ruling on RR implied crossing issue

BUTLER v. PRICE, No. 30402 (Per Curiam)(Albright, J., disqualified)(Bloom, Judge, by assignment)(Starcher, J. and McGraw, J., concurring)(October 18, 2002). Appeal from a final order of the Circuit Court of Wood County, which determined that an 1882 agreement granting a railroad right-of-way did not provide appellant with an implied right to cross the right-of-way for commercial purposes. In light of the termination of the contract of sale and the appellant's eviction from the property, dismissing the appeal and holding that appellant lacked standing to challenge the circuit court's ruling on the implied crossing issue. Stating that dismissal does not preclude appellant from seeking relief against seller for alleged misrepresentation of the existence of an established right to cross the right-of-way.

Construing reservation for family cemetery

BELCHER v. AGEE, No. 30432 (Per Curiam)(October 11, 2002). Reversing an order of the Circuit Court of Kanawha County that construed a deed reserving land for use as a family cemetery. Holding that a map attached to one of the recorded deeds and referenced in the remaining deeds referenced a cemetery larger in size than that determined by the lower court.

PUBLIC UTILITIES

Municipal compliance with statutes and PSC directives regarding delinquency and reconnection fees

SER PUBLIC SERVICE COMMISSION v. TOWN OF FAYETTEVILLE, MUNICIPAL WATER WORKS, No. 30672 (Per Curiam)(Davis, C.J.)(October 11, 2002). Granting a writ of mandamus compelling the city to comply with a PSC order regarding reconnection service fees and to comply with statutory mandates regarding liability of landlords for delinquencies of tenants. Holding that municipalities are not exempt from the ability of the PSC to exercise its general powers to require reasonable, non-discriminatory practices based primarily upon the cost of service.

SCHOOLS, STATUTES

Compliance with new procedural requirements for school closure; meaning of "effective from passage"

CITY OF BENWOOD, et al. v. BOARD OF EDUCATION OF MARSHALL COUNTY, et al., No. 30627 (Per Curiam)(November 1, 2002). Affirming an order of the Circuit Court of Marshall County in a dispute over the procedures surrounding the closure of Union Junior High School. Holding that the lower court erred in holding that the Board was not required to comply with amendments to WV Code 18-5-13a, which were adopted through House Bill 4149 in 2002. The circuit court erred to the extent that it ruled that a bill made "effective from passage" does not take effect until the date it is signed by the Governor. Holding further that the Board's actions complied with the statute's requirements.

STATUTORY INTERPRETATION, JUVENILES

Attribution of fees for expert services in juvenile delinquency and abuse and neglect cases

HEWITT v. WVDHHR, No. 30621 (Albright, J.)(Starcher, J. and Maynard, J. dissenting)(December 4, 2002). Granting mixed relief from an order entered in the Circuit Court of Ohio County regarding payment of fees for psychological services rendered in juvenile delinquency and abuse and neglect cases. Holding that payment order for abuse/neglect services entered prior to the effective date of the amendment to WV Code 49-7-33 were to be paid at the rate set by the trial court, those entered afterward are to be paid at the rate established by Medicaid and adopted by DHHR for those services. Holding further that fees ordered in connection with juvenile delinquency services are the responsibility of the Court, not the DHHR.

TORTS

Remand of dismissal action where order fails to contain sufficient basis for review

HIVELY v. MERRIFIELD, et al., No. 30437 (Per Curiam)(December 11, 2002). Reversing an order of dismissal entered in the Circuit Court of Kanawha County in favor of the defendants in an action for interference with a business relationship, defamation, and fraud. Holding that the dismissal order fails to set forth sufficient findings of fact under FAYETTE COUNTY NAT. BANK v. LILLY, 199 WV 349, 484 SE2d 232 (1997), remanded for further proceedings.

Special relationship created in construction loan process imposes duty to disclose adverse reports

GLASSCOCK v. CITY NATIONAL BANK, No. 30595 (McGraw, J.)(Maynard, J., concurring in part and dissenting in part)(December 9, 2002). Reversing a grant of summary judgment in favor of the bank entered in the Circuit Court of Jefferson County in a lawsuit by homeowners who had an agreement with the bank for a construction loan, and claim they were damaged by the bank's failure to disclose an unfavorable home inspection report. Holding that under the particular facts of this case, a special relationship arose between the bank and the appellant, which imposed a duty to disclose the report. Holding, in syllabus point 6, that "Where a lender making a construction loan to a borrower creates a special relationship with the borrower by maintaining oversight of, or intervening in, the construction process, that relationship brings with it a duty to disclose any information that would be critical to the integrity of the construction project."

Instructional error in medical malpractice action regarding presumption that defendant has acted in accordance with standard of care

MATHENY v. FAIRMONT GENERAL HOSPITAL, et al., No. 30256 (Davis, C.J.)(December 6, 2002). Granting mixed relief in plaintiff's appeal from an order of the Circuit Court of Marion County denying their motion for new trial after an adverse jury verdict in a medical malpractice action. Holding, in syllabus point 5, that "When the jury charge in a neglligence action includes an instruction staing the plaintiff's burden of proof, it is reversible error for the court to also include in the charge an instruction informing the jury of a presumption that the defendant has acted in accordance with the appropriate standard of care or duty. To the extent that our opinion in LAMBERT v. GREAT ATLANTIC & PACIFIC TEA CO., 155 WV 397, 184 SE2d 118 (1971), suggests otherwise, that decision is expressly overruled." Rejecting other arguments raised by the appellant. Remanded for new trial.

Summary judgment for car maker upheld in products liability action, strict liability through circumstantial evidence not shown

BEATTY v. FORD MOTOR CO., No. 30622 (Per Curiam)(McGraw, J., dissenting)(December 6, 2002). Affirming a grant of summary judgment entered in the Circuit Court of Monongalia County in favor of car maker in products liability action. Holding that appellant's theory--that the accident was caused by a broken drag link-a theory that was not supported by expert testimony, was not sufficient to establish a prima facie case of strict products liability based upon circumstantial evidence. Further concluding that the appellant failed to show a material question of fact regarding whether the appellee was negligent through the application of res ipsa loquitur.

Defense summary judgment upheld in products liability failure to warn action

WILKINSON v. DUFF, et al., No. 30399 (Per Curiam)(December 6, 2002). Affirming a grant of summary judgment entered in the Circuit Court of Kanawha County in favor of defendants in a failure to warn products liability action arising from treatment at a weight-loss clinic. Holding that plaintiff failed to show evidence of a genuine issue of material fact that defendants had failed to warn of certain hazards regarding their product, and failed to show evidence of a genuine issue of material fact that the warnings or lack thereof were a proximate cause of the injuries complained of.

Defense summary judgment appropriate in medical malpractice action where plaintiff fails to prove breach of standard of care

WITHROW v. WVU HOSPITALS, ET AL., No. 30463 (Per Curiam)(Starcher, J. dissenting)(McGraw, J. dissents)(December 4, 2002). Affirming the Circuit Court of Kanawha County's grant of summary judgment in favor of defendants in a medical malpractice action. Upholding lower court's determination that plaintiffs failed to offer expert testimony to prove that there had been a breach of the applicable standard of care by the WVU Hospital's nursing staff, and therefore failed to prove an essential element required to establish medical negligence against WVU Hospital.

No common law cause of action for property monitoring

CARTER v. MONSANTO CO., ET AL., No. 30651 (Maynard, J.)(Starcher, J. concurring)(McGraw, J. concurring in part and dissenting in part)(December 6, 2002). In response to a certified question from the Circuit Court of Putnam County, holding that no common-law cause of action exists in West Virginia for property monitoring. Under the facts presented, refusing to extend the medical monitoring remedy set forth in BOWER v. WESTINGHOUSE, 206 WV 133, 522 S.E.2d 424 (1999).

Summary judgment appropriate in deliberate intention action

TOLLEY v. ACF INDUSTRIES, INC., et al., No. 30461 (Per Curiam)(McGraw, J., dissenting)(November 15, 2002). Affirming a grant of summary judgment in favor of defendants in a deliberate intention action arising from the Circuit Court of Kanawha County. Declining to hold that failure to monitor exposure levels to harmful chemical is, of itself, sufficient to establish an unsafe working condition, and further finding that appellant had failed to establish any of the five prerequisites for a deliberate intention action.

Summary judgment premature where discovery necessary to oppose motions is incomplete

ELLIOTT v. SCHOOLCRAFT, et al., No. 30431 (Per Curiam)(Davis, J., concurring in part and dissenting in part)(Starcher, J., concurring)(November 20, 2002). Reversing a grant of summary judgment in favor of defendants entered in the Circuit Court of Kanawha County, in an action for damages arising from personal injuries that occured at a high school party. Holding that the circuit court abused its discretion by granting summary judgment before the appellant was allowed to conduct discovery of facts necessary to oppose appellee's motions for summary judgment.

Summary judgment reversed on fraud and breach of contract claims

POLING v. PRE-PAID LEGAL SERVICES, INC., et al., No. 30525 (Per Curiam)(November 27, 2002). Reversing the Circuit Court of Monongalia County's grant of summary judgment in favor of Pre-Paid Legal Services on plaintiff's fraud and breach of contract claims, in light of the existence of genuine issues of material fact that exist regarding those claims. Holding that it was "highly likely" that testimony could be introduced, including extrinsic evidence, which would indicate that contract terms in addition to those in the boilerplate document did exist.

New trial for failure to disclose audio tape in discovery

HALL v. CASTO, No. 30462 (Per Curiam)(November 4, 2002). Reversing a jury verdict in favor of the defendant obtained in the Circuit Court of Kanawha County in a chiropractic malpractice action. Holding that because the appellant was not given an accurate copy of an audio tape of plaintiff's session with the defendant, despite requesting it in discovery, the trial court erred in playing that audio tape to the jury. Remanded for new trial.

Evidence was sufficient to support allegedly inadequate verdict

FARIS, et al. v. HARRY GREEN CHEVROLET, et al., No. 30412 (Per Curiam)(November 4, 2002). Affirming order denying a motion for new trial entered by the Circuit Court of Harrison County following a jury award for the plaintiff in the amount of $3,235.80 in vehicular accident case. In light of the conflicting evidence heard by the jury regarding the extant of plaintiff's injuries that resulted from the accident, there was adequate evidence to support the jury's verdict.

Evidence of plaintiff's use of seatbelt inadmissible when mandatory statute does not apply

MILLER v. JEFFREY, et al., No 30254 (McGraw, J.)(Davis, C.J. and Maynard, J., dissenting)(October 25, 2002). Reversing defense verdict obtained in the Circuit Court of Boone County in a personal injury action arising from a vehicle accident that took place at a coal mine site. Holding that the trial court improperly allowed the jury to consider the issue of whether or not the plaintiff was wearing his seatbelt. Because the accident occurred on a private road, the mandatory seat belt statute did not apply, evidence of seat belt usage should not have been admitted, and it was error for the trial court not to instruct the jury to ignore such evidence once it had been introduced.

Damages for invasion of privacy

ROHRBAUGH v. WAL-MART STORES, INC., et al., No. 30441 (Davis, C.J.)(October 11, 2002). Granting mixed relief from a judgment entered in the Circuit Court of Harrison County following a jury trial in an action against Wal-Mart for invasion of privacy arising from its alcohol and drug testing of an employee who was injured on the job. The jury found that the plaintiff was entitled to punitive damages on the invasion of privacy claim, even though no compensatory damages were awarded. Reversing the trial court's denial of new trial on damages for invasion of privacy. Setting forth guidelines for assessment of damages for invasion of privacy.

UCC, BANKING

Perfecting security

STANLEY v. HARRISON COUNTY BANK, ET AL., No. 30629 (Per Curiam)(Starcher, J. concurring)(McGraw, J. dissenting)(December 4, 2002). Affirming judgment of the Circuit Court of Harrison County in a lien priority case. Holding that bank was not required to follow real property-related requirements to obtain an effective security interest in the proceeds of coal that had been mined, because the terms of the bank's security interest included future-acquired accounts and property.

WILLS, TRUSTS & ESTATES

Propriety of invasion of corpus of marital trust, discretion to invade for necessity of tax planning

SMITH, et al. v. FIRST COMMUNITY BANCSHARES, INC., et al., Nos. 30623, 30624 (Maynard, J.)(McGraw, J., disqualified)(Matish, Judge, by temporary assignment)(December 11, 2002). Affirming various orders entered in the Circuit Court of Mercer County in litigation arising out of an action for alleged wrongful invasion of the corpus of a marital trust. Holding, in syllabus point 3: "The word 'need' as used in testamentary language authorizing encroachment of a trust corpus, when not expressly limited to the comfort, support, maintenance, welfare, health, or financial condition of the beneficiary, and depending upon the overall intent of the testator as indicated by the remaining terms of the will, may refer to the necessity of invading the corpus of the trust for the purpose of estate tax planning." Further holding, in syllabus point 4: "Where a testamentary trust provides a general power of appointment to the life beneficiary and further directs the trustee [greater equal]to pay to [the life beneficiary], out of the principal of the . . . trust estate, upon her request therefor in writing, such sum or sums as may be required to meet any need or condition which may arise or develop and which in the judgment of the Trustee justifies invading the corpus of the trust estate[,][less equal] the trustee is granted the discretion to invade the corpus of the trust for the necessity of estate tax planning purposes."

WORKERS' COMPENSATION

Evaluation of post-Bilbrey hearing loss

BLACKBURN v. WCD/MARROWBONE DEVELOPMENT CO., No. 29543 (Davis, C.J.)(Starcher, J., concurring)(Maynard, J., dissenting)(Albright, J., concurring in part and dissenting in part)(November 27, 2002). Granting relief in an action challenging the current practice of the Workers' Compensation Division in evaluating hearing loss cases, where the disability award is automatically based upon the lowest level of hearing loss in cases where a discrepancy between two audiograms exceeds the margin of error. Directing the Commissioner to establish new procedural rules to create uniformity in the administration of audiograms and selection of valid results. Until such time as those ruled are promulgated, and where a discrepancy between two audiograms falls within the margin of error of ten decibels, the liberality rule should be applied, and the claimant should be given the benefit of the audiogram demonstrating a higher level of hearing loss. Where the discrepancy between the two audiograms exceeds the margin of error of ten decibels, an additional audiogram should be performed.

This topical index is prepared by the Clerk, Rory Perry, for the general reference and convenience of the public and the bar. Topical headings, taglines and case summaries contained in the topical index are not intended to substitute for a statement of the law, nor are the summaries a substitute for a full reading of all the Court's opinions in a matter. Readers are heartily encouraged to read the opinions for themselves. If you really must re-use portions of this site, please attribute your use of the content by linking back to this page, referencing "WV Supreme Court Topical Index | September Term 2002"

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Supreme Court of Appeals of WV
Prepared in 2003
by Rory Perry.

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